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• V81 SENATE DOC. No. lir. 

Copy 1 



COMMUNICATION 



FROM THE 



GOVERNOR OF VIRGINIA 

TRANSMITTING 

Certain Correspondence and Reports in reference to the claim 

of Virginia against the United States Government on 

account of the cession of the Northwest Territory 



COMMONWEALTH OF VIRGINIA, 

Governor's Office, 
Richmond, Va., January 24, 1910. 
To the General Assembly of Virginia: 

Superintendent of Public Instruction Hon. J. D. Eggleston, and Dr. 
Robert B. Fulton, superintendent of the Miller School, have called to my 
attention a large claim which the State of Virginia has against the Federal 
government arising from the cession to the United States of the vast terri- 
tory once possessed by this Commonwealth north of the Ohio river. Dr. 
Fulton has, at the request of Superintendent Eggleston and myself, for 
some time been making a thorough investigation of this matter, and has 
compiled a complete and detailed statement of this claim, which appears 
to establish its justice and legality, and imposes upon me the duty of 
transmitting the facts and information obtained by him to you for con- 
sideration and action. 

Prominent Virginians, including Commodore Maury and Superintendent 
of Public Instruction Dr. William H. Ruffner, have presented in writings and 
reports this claim of the State of Virginia. 

Succinctly stated the claim presented is as follows: 

The vast territory north of the Ohio river was included in Virginia's 
original charter of 1609, which charter was prior to the charter of any 
other State, and which territory was included in the boundaries of Vir- 
ginia when she asserted her independence and organized her government 



0-,^7)O97 



2 Senate Doc. No. 3. 

as a sovereign State in 1776. This territory, in addition to being Virginia's 
by charter rights, became hers also by conquest, since it was conquered 
from the British by Virginia troops, commissioned by the Governor and 
Council of Virginia. The expenses incurred by these troops in this conquest 
were paid out of the treasury of this Commonwealth. Virginia was in actual 
possession and control of this territory until her cession to the Federal gov- 
ernment and the acceptance of her cession by the Federal government. 
Prior to this cession this territory was organized as the county of Illinois, 
and held as a part of the State. Thus, by charter rights, by conquest and 
by actual possession, this territory ceded constituted a part of Virginia. 
The fact that the United States government derived title to this vast terri- 
tory by cession and deed of conveyance made by Virginia to the United States 
States government has been clearly and distinctly recognized by the Supreme 
Court of the United States in the case of Handley's Lessee v. Anthony, 5th 
Wheaton, page 374. In this case, the opinion of which was rendered by 
Chief Justice Marshall, the court decided, in fixing the boundary lines be- 
tween the State of Kentucky and the State of Indiana, that the boundary 
line of Indiana must be determined by the cession made by the State of 
Virginia to the United States government and the terms and limitations con- 
tained in that cession, since the title of the United States to the territory 
was derived from this cession of the State of Virginia. The opinion of 
this court was further sustained by the General Court of Virginia in the 
case of Commo7itvealth v. Garner, 3d Grattan, page 655. Thus the prior 
rights of Virginia to this territory have been judicially determined. 

In the act of Virginia making the cession of this large territory to the 
United States and in the deed of conveyance in pursuance of the act of 
the General Assembly executed by her representatives in the Continental 
Congress, Thomas .Jefferson, Samuel Hardy, Arthur Lee and James Monroe, 
according to her directions, were contained certain conditions, which condi- 
tions the Federal government accepted. Among the conditions thus enumer- 
ated and accepted by the Federal government was the following: 

"That all the land within the territory so ceded to the United 
States and not reserved or appropriated to any of the before men- 
tioned purposes, or disposed of in bounties to the officers and soldiers 
of the American army, shall be considered as a common fund for the 
use and benefit of such of the United States as have become or 
shall become members of the Confederation or Federal Alliance of 
the said States, Virginia inclusive, according to their usual respective 
proportions in the general charge and expenditure, and shall be faith- 
fully and bona fide disposed of for that purpose and for no other 
use or purpose whatsoever." 

The United States government, through Congress, has uniformly recog- 
nized that this territory ceded was derived from Virginia, and that she 
was bound by the conditions contained in the act of cession. Desirous of 
changing some of the conditions contained in the act of cession regarding 
the establishment of new States in the ceded territory, she requested Vir- 
ginia to make some alterations in these conditions, which Virginia con- 
sented to, permitting the creation of States different from the original 

D. OF D. 

IVIAP 4 1910 }'' 



^ 



Senate Doc. No, 3. 3 

cession. By requesting Virginia to make this change Congress recognized 
that she had no right even in the creation of States in this territory to 
alter the terms of the original act of conveyance without the consent of 
the State of Virginia. 

Out of this territory ceded by Virginia were formed the States of Ohio, 
Indiana, Illinois, Michigan, Wisconsin and a portion of Minnesota. The 
United States received by this cession 170,208,623 a^rcr, of land. Of this 
land some was appropriated to comply with the conditions contained }ii 
the act of cession accepted, otlier than the one above suited. The largest 
portion of it was sold and paid into the treasury of the United Seates and 
used in payment of the public debt and in the payment of Federal expendi- 
tures. It may possibly be contended that this portion was, under the 
terms of the cession, used for the benefit of all States, as contained in 
the cession made by Virginia. But, contrary to the expressed conditions 
contained in the act of cession, Congress at different times, in the aggregate, 
appropriated 38,868,212 acres of land, and $2,953,654.70, derived from the 
sale of these public lands, entirely to local uses within these six States. 
These amounts of land and money were appropriated for local school pur- 
poses, construction of canals, improvement of local roads and other purposes 
within these States, entirely local. Thus it appears that more than one-fifth of 
the lands ceded by Virginia under definite provisions and conditions, reserv- 
ing to Virginia an interest in them, has been disposed of in ways that have 
given no "use and benefit" to Virginia, as distinctly reserved for her in her 
act of cession. At the time that Virginia ceded her western territory to the 
United States Virginia's proportion in the general charge and expenditure 
was about one-seventh of the whole, and thus her reserved interest in the 
lands not specifically applied for the purposes stated in the deed of conces- 
sion was about one-seventh. The value of this land donated to local uses 
(amounting to 38,868,212 acres), computed at $2.00 per acre, which w'as the 
price fixed by Congress when it was first offered for sale, w^ould be $77,736,- 
424.00. This, added to the amount of money appropriated of $2,958,654.00, 
would make the total value of the donation for local purposes, clearly con- 
trary to the terms and provisions of cession, amount to $80,695,078.00. Sub- 
ject to such claims as might exist in behalf of Kentucky and West Virginia, 
which were then a part of Virginia, Virginia has a right to demand of the 
Federal government her part of these lands and money, which Congress appro- 
priated entirely to local uses and for which Virginia received no benefit. 

The full statement of Dr. Fulton, which I file with this message, indi- 
cates other large and fair claims of Virginia, which the limit necessarily given 
to this message precludes me from mentioning. Though reserving to herself 
a fair share of the use and benefits to be derived from these many millions of 
acres of land, it appears that Virginia has never received an acre of land nor 
a cent of money from this source. The Federal government accepted by reso- 
lution this cession of Virginia containing these conditions, and is bound in 
law and equity to discharge the obligations of the compact made with Vir- 
ginia. The United States has fully recognized her obligations to comply with 
all the conditions imposed in the Virginia conveyance, and cession, by ful- 
filling all except the one reserving to Virginia a share in the use and benefits 
of all these lands. Virginia should insist that this should be complied with. 
As a party to the compact she is the proper party to make this demand. 



4 Senate Doc. ISTo. 3. 

I commend to your most careful consideration the very valuable and in- 
teresting history of this transaction and the claims of the State of Virginia 
upon the Federal government, which has been so industriously and carefully 
compiled by Dr. Fulton. I have had no opportunity to maker a careful per- 
sonal examination of the statements contained in the documents 'submitted 
to me, hence I recommend that the General Assembly of Virginia refer this 
matter to an appropriate committee for examination and report. If the con- 
clusions reached by that committee concur with those contained in the state- 
ments and facts presented herewith, I then recommend that the General As- 
sembly authorize her representatives in Congress to take such action as they 
may think proper to have this claim of Virginia against the Federal govern- 
ment fairly and justly settled, and that the Attorney-General of this State be 
directed to co-operate with them and to take such action as he may think the 
best interest of Virginia demands. 

I transmit with this message a full statement of the facts and conclusions 
obtained by Dr. Fulton in his research and investigation, with letters from 
Superintendent Eggleston and Dr. Fulton. 

Respectfully submitted, 

CLAUDE A. SWANSON, 
Governor. 

COMMONWEALTH OF VIRGINIA, 
Department of Public Instruction, 
Richmond, Va., January 22. 1910. 
His Excellency, Claude A. Swanson, Governor of Virginia, Richmond, Va. 

Mt Dear Governor: 

In the State school reports of Superintendent W. H. Ruffner for the years 
1871-1873, extended mention is made of the claims of Virginia against the 
United States, based on the cession of the Northwest Territory. 

I started an investigation of these claims in 1906, but found that it would 
take too much of my time from official duties. Knowing that Dr. R. B. Fulton, 
at one time chancellor of the University of Mississippi and now president of 
the Miller School of Virginia, had an intimate acquaintance with the public 
land legislation and policies of the United States government, I asked him in 
the spring of 1907 to maKe a thorough investigation of Virginia's rights in 
the premises. 

A few months ago, as you will recall, Dr. Fulton and I had a conference 
with you in regard to this matter and laid before you the results of the in- 
vestigation made by Dr. Fulton. You suggested certain further lines of in- 
quiry, which have been carefully pursued since that time. 

I transmit herewith a letter from Dr. Fulton, with accompanying docu- 
ments, for your consideration and for such action as you think the interests 
of the State demand. 

I am, sir, with high regard, 

Respectfully yours, 

J. D. EGGLESTON, Jr., 
Superintendent of Public Instruction. 



Senate Doc. No. 3. 5 

THE MILLER SCHOOL, 
Miller School Postoffice, Albkmaiile Co., Va., 

Miller School, Va., December 22, 1909. 
Hon. Joseph D. Eggleston, Superintendent of Publie Instruction, Richmond, 
Va. 

My Dear Mr. Eggleston: 

In the spring of the year 1907 you called my attention to the statements 
published by your predecessor in office, the late Dr. Wm. H. Ruffner, in his 
first, second and third annual reports, as Superintendent of Public Instruction 
(1871-73), regarding the reserved interest of tlie State of Virginia in the lands 
northwest of the Ohio river, which lands she ceded, under certain conditions, 
to the United States in 1784. Soon after this conversation, in June, 1907, you 
requested me to make an examination of the matter to which Dr. Ruffner 
referred, and you supplied me with copies of the reports above mentioned, 
and gave many helpful suggestions. 

The matter has had my most careful consideration. I have sought origi- 
nal sources of information, as well as the opinions of statesmen and writers 
which might throw light upon the subject. While its various ramifications 
have led in many directions, have been involved with many co-ordinate or 
conflicting interests, and have extended over a long historical period, I trust 
that the essential facts which should form the basis of a correct judgment 
are shown with sufficient clearness in the condensed statement herewith pre- 
sented. 

In this statement I have brought together in proper sequence certain 
well known historical facts, and have made references to the authorities con- 
sulted. 

The subject is of more than academic interest, since it involves questions 
of right and justice and patriotism, and concerns the great State of Virginia 
in her relations to her sister States, and to the republic. 

You are at liberty to use this paper in any way which you may think 
proper. 

Very sincerely yours, 

ROBERT B. FULTON. 

THE VIRGINIA LAND CESSION OF 1784. 

The first settlements of the English upon the Atlantic coast of North 
America were made under charters or grants from the British Crown. The 
texts of these charters may be found in "Poore's Charters and Constitutions of 
the United States." A brief discussion of the thirteen original American 
colonies, as constituted under the Royal Charters may be found in Dr. B. A. 
Hinsdale's "The Old Northwest.'" Hinsdale follows the texts of the charters 
as given by Poore. 

In these charters the attempts made to specify limits and boundaries in an 
unknown Continent unavoidably led to controversy when the settlements 
were extended from their original centers. It is not the present purpose to 



^Published by Silver, Burdett & Co., 1899. 



6 Senate Doc. No. 3. 

discuss these controversies, but only to state such facts as relate to the sub- 
ject in hand. 

The settlement at Jamestown in 1607 was made under a charter given in 
1606 by King James I. "But as it did not prove satisfactory, the king, in 
1609, granted to the London Company a second charter, in which he bounded 
the colony that henceforth monopolized the name of Virginia as follows: 

" Situate, lying, and being in that part of America called 

Virginia, from the point of land called Cape or Point Comfort, all along the 
Sea-Coast to the Northward two hundred miles, and from the said point of 
Cape Comfort, all along the Sea-Coast to the Southward two hundred miles, 
and all that Space and Circuit of Land lying from the Sea-Coast of the Pre- 
cinct aforesaid up into the Land throughout from Sea to Sea. And also all 
the Islands lying within one hundred miles along the Coast of both Seas of 
the Precinct aforesaid "■ 

When Virginia asserted her independence and organized her government 
as a sovereign State in 1776, she reaffirmed her charter right to the territo'-y 
in the limits fixed by King James I, in 1609. Section XXI of her Constitu- 
tion, adopted June 29, 1776, reads: 

"The territories contained within the charters erecting the colonies 
Maryland, Pennsylvania, North and South Carolina, are hereby ceded, re- 
leased and forever confirmed to the people of those colonies respectively, with 
all the rights of property, jurisdiction, and government, and all other rights 
whatsoever which might at any time heretofore have been claimed by Vir- 
ginia, excepting the free navigation and use of the rivers Potomack and Poho- 
moke, with the property of the Virginia Shores or Strands bordering on 
either of the said rivers, and all improvements which have been or shall be 
made thereon. 

"The western and northern extent of Virginia shall in all other respects 
stand as fixed by the charter of King James the first, in the year one thou- 
sand six hundred and nine, and by the publick treaty of peace between the 
courts of Great Britain and France in the year one thousand seven hundred 
and sixty-three; unless, by act of legislature, one or more territories shall 
hereafter be laid off, and governments established westward of the Alleghany 
Mountains. And no purchase of lands shall be made of the Indian natives 
but on behalf of the public, by Authority of the General Assembly."^ 

This territorial claim of Virginia, based uon her charter, placed her 
western bonudary at the Mississippi River, and left an undetermined exten- 
sion northward for her territory northwest of the Ohio River. 

Acting under instructions from the Governor and Council of Virginia, 
dated January 2, 1778, George Rogers Clark, in command of Virginia troops, 
in 1778 and 1779, captured all the British posts in the territory northwest of 
the Ohio, excepting those in the extreme north on the great lakes, and held 
the territory from the Ohio to the lakes in the name of Virginia. 

"The Northwest had been won by a Virginia Army, commanded by a 
Virginia officer, put in the field at Virginia's expense. "* 



^Hinsdale. The Old Northwest, p. 73. 
'Hening's Statutes of Va., Vol. 9, pp. 118-119. 
'Hindale's "The Old Northwest," p. 158. 



Senate Doc. No. 3. 7 

On October 27, 1777, the Continental Congress in framing the Articles 
'it Confederation which were to be rrabmitted to the sevei-al States for ac- 
ceptance, inserted a clause to the effect that "No State shall be deprived of 
territory for the benefit of the United States."^ 

"The six smaller States which held no western lands contended with 
tenacity and determination that said lands should not be held by the States 
owning them for their exclusive use, while the seven States which claimed 
and under the Confederation held vast sections of crown grant lands in the 
West held the contrary opinion."" 

Maryland refused to sign the Articles of Confederation until the States 
holding or claiming western territory should make a surrender of these lands 
or claims to the United States. Her General Assembly voted on December 15, 
1778, vigorous instructions to her delegates in Congress urging the views and 
contentions of Maryland, which were presented in Congress January 6, 1779.^ 
A still more earnest paper adopted the same day, December 15, 1778, was not 
presented in Congress until May 21, 1779.''-a 

In reply to this action by Maryland the General Assembly of Virginia, on 
December 14, 1779, addressed to the delegates of the United States in Con- 
gress assembled a "Remonstrance," firm and vigorous in tone.** 

On the 7th of March, 17S0, the delegates in Congress from New York pre- 
sented an act of the legislature of that State offering to limit the boundaries 
of that State on the "West, leaving to the United States territory in the west 
claimed by New York.' Her claim was largely based upon treaties with the 
Indians. 

Following the reception of these papers, Congress took the following 
action:' 

IN CONGRESS OF THE CONFEDERATION, 

Wednesday, Septeviber 6, 1780. 

"Congress took into consideration the report of the committee to whom 
were referred the instructions of the General Assembly of Maryland to their 
delegates in Congress respecting the Articles of Confederation and the decla- 
ration therein referred to, the act of the legislature of New York on the same 
subject, and the remonstrance of the General Assembly of Virginia; which 
report was agreed to, and is in the words following: 

"That having duly considered the several matters to them submitted, 
they consider it unnecessary to examine into the merits or policy of the in- 
structions or declarations of the General Assembly of Maryland, or of the 
remonstrance of the General Assembly of Virginia, as they involve questions, 
a discussion of which was declined, on mature consideration, when the 
Articles of Confederation were debated; nor, in the opinion of the committee, 
can such questions be now revived with any prospect of conciliation; that it 
appears more advisable to press upon those States which can remove tne em- 



''Secret Journals of Consross under date, October 27, 1777. 

'History of the Public Domain, Government Printing Office, p. 60. 

'History of the Public Domain, pp. 61-2. 

'a Secret Journals of Congress, date of Ma.v 21, 1779. 

'Hening's Statutes of Virginia, Vol. X, pp. 546 et seq. 

'History of the Public Domain, p. 63, Journals of Congress, March 7, 1780. 

'Journals of Congress, September 6, 1780, History of the Public Domain, p. 64. 



8 Senate Doc. No. 3. 

barrassments respecting the western country a liberal surrender of a por- 
tion of their territorial claims, since they cannot be preserved entire without 
endangering the stability of the general confederacy; to remind them how 
indispensably necessary it is to establish the Federal Union on a fixed and 
permanent basis, and on principles acceptable to all its members; how es- 
sential to public credit and confidence, to the support of our army, to the 
vigor of our councils and success of our measures, to our tranquillity at 
home, our reputation abroad, to our very existence as a free, sovereign, and 
independent people; that they are fully persuaded the wisdom of the respec- 
tive legislatures will lead them to a full and impartial consideration of a sub- 
ject so interesting to the United States, and so necessary to the happy estab- 
lishment of the Federal Union; that they are confirmed in these expectations 
by a review of the before-mentioned act of the legislature of New York, sub- 
mitted to their consideration; that this act is expressly calculated to accele- 
rate the Federal Alliance, by removing, as far as depends on that State, the 
impediment arising from the western country, and for that purpose to yield 
up a portion of territorial claim for the general benefit; whereupon, 

Resolved, That copies of the several papers referred to the committee 
be transmitted, with a copy of the report, to the legislatures of the several 
States, and that It be earnestly recommended to those States tvho have claims 
to the western country, to pass such laws, and give their delegates in Con- 
gress such powers as may effectually remove the only obstacle to a final rati- 
fication of the Articles of Confederation; and that the legislature of Maryland 
be earnestly requested to authorize the delegates in Congress to subscribe the 
said article."^ 

The State of Virginia, then in actual possession of that part of her 
chartered domain situated northwest of the river Ohio, from which her 
"" own troops, under the command of Colonel George Rogers Clark, had 

driven the British forces, by act of her General Assembly, dated January 
2, 1781, submitted a proposition for the cession of these western 
lands.^ 

The Congress of the Confederation, by act of September 13, 1783, 
agreed to receive and accept this proposition after certain changes 
therein.' 

The final form of the deed of cession, after amendment by Congress, was 
approved and adopted by the General Assembly of Virgia, under date of the 
20th of October, 1783.^ 

On March 1, 1784, Virginia, through her delegates in the Congress of the 
Confederation, Thomas Jefferson, Samuel Hardy, Arthur Lee and James Mon- 
roe, completed the act of cession, the following record showing the proceed- 
ings had in Congress i'^ 



Journals of Congress, September 6, 1780, History of the Public Domain, p. 64. 

^History of tho Public Domain, p. 67, Hening's Statutes of Virginia, Vol. 10, p. 564. 

'Journals of Congress, date of September 13, 17S3. 

^Hening's Statutes of Virginia, Vol. 11, pp. 566-575. 

''History of the Public Domain, pp. 68-70, Journals of Congress, March 1, 1784. 



Senate Doc. No. 3. 9 

"On motion of Mr. Howell, of Rhode Island, the following resolution was 
adopted: 

"Whereas the General Assembly of Virginia, at their session, commenc- 
ing on the 20th day of October, 1783, passed an act to authorize their dele- 
gates in Congress, to convey to the United States in Congress assembled, all 
the right of that Commonwealth to the territory northwestward of the river 
Ohio: and whereas the delegates of the said Commonwealth have presented 
to Congress the form of a deed proposed to be executed pursuant to the said 
act, in the words following: 

"To all who shall see these presents, we, Thomas Jefferson, Samuel 
Hardy, Arthur Lee, and James Monroe, the underwritten delegates for the 
Commonwealth of Virginia, in the Congress of the United States of America, 
send greeting: 

"Whereas the General Assembly of the Commonwealth of Virginia, at 
their session begun on the 20th day of October, 1783, passed an act entitled 
'An act to authorize the delegates of this State in Congress, to convey to the 
United States in Congress assembled, all the right of this Commonwealth to 
the territory northAvestward of the river Ohio,' in these words following, 
to-wit: 

"Whereas the Congress of the United States did, by their act of the sixth 
•day of September, in the year one thousand seven hundred and eighty, recom- 
mend to the several States in the Union, having claims to waste and unappro- 
priated lands in the western country, a liberal cession to the United States, 
of a portion of their respective claims, for the common benefit of the Union: 
and whereas this Commonwealth did, on the second day of January, in the 
year one thousand seven hundred and eighty-one, yield to the Congress of the 
United States, for the benefit of the said States, all right, title, and claim, 
which the said Commonwealth had to the territory northwest of the river 
Ohio, subject to the conditions annexed to the said act of cession. 

"And whereas the United States in Congress assembled have, by their 
act of the 13th of September last, stipulated the terms on which they agree 
to accept the cession of this State, should the legislature approve thereof, 
which terms, although they do not come fully up to the proposition of this 
Commonwealth, are conceived, on the whole, to approach so nearly to them, 
as to induce this State to accept thereof, in full confidence, that Congress 
will, in justice to this State, for the liberal cession she has made, earnestly 
press upon the other States claiming large tracts of waste and uncultivated 
territory, the propriety of making cessions equally liberal, for the common 
benefit and support of the Union: 

(A) "Be it enacted by the General Assemhly, That it shall and may be 
lawful for the delegates of this State to the Congress of the United States, or 
such of them as shall be assembled in Congress, and the said delegates, or such 
of them so assembled, are hereby fully authorized and empowered, for and on 
behalf of this State, by proper deeds or instrument in writing, under their 
hands and seals, to convey, transfer, assign, and make over, unto the United 
States in Congress assembled, for the benefit of the said States, all right, title, 
and claim, as well of soil as jurisdiction, which this Commonwealth hath to 
the territory or tract of country within the limits of the Virginia charter, 
situate, lying, and being, to the northwest of the river Ohio, subject to the 
terms and conditions contained in the before-recited act of Congress of the 



10 Senate Doc. No. 3. 

thirteenth day of September last; that is to say, upon condition that the t'-r- 
ritory so ceded shall be laid out and formed into States, containing a suitable 
extent of territory, not less than one hundi'ed, nor more than one hundred 
and fifty miles square, or as near thereto as circumstances will admit; and 
that the States so formed shall be distinct republican States, and admitted 
members of the Federal Union; having the same rights of sovereignty, 
freedom, and independence, as the other States. 

(B) "That the necessary and reasonable expenses incurred by this State, 
in subduing any British posts, or in maintaining forts and garrisons within, 
and for the defence, or in acquiring any part of, the territory so ceded or 
relinquished, shall be fully reimbursed by the United States: and that one 
commissioner shall be appointed by Congress, one by this Commonwealth, 
and another by those two commissioners, who, or a majority of them, shall be 
authorized and empowered to adjust and liquidate the account of the neces- 
sary and reasonable expenses incurred by this State, which they shall judge 
to be comprised within the intent and meaning of the act of Congress, of the 
tenth of October, one thousand seven hundred and eighty, respecting such ex- 
penses. (C) That the French and Canadian inhabitants, and other settlers 
of the Kaskaskies, St. Vincents, and the neighboring villages, who have pro- 
fessed themselves citizens of Virginia, shall have their possessions and titles 
confirmed to them, and be protected in the enjoyment of their rights and liber- 
ties. (D) That a quantity not exceeding one hundred and fifty thousand acres 
of land, promised by this State, shall be allowed and granted to the then colo- 
nel, now General George Rogers Clarke, and to the officers and soldiers of his 
regiment, who marched with him when the posts of Kaskaskies and St. Vin- 
cents were reduced, and to the officers and soldiers that have been since incor- 
porated into the said regiment, to be laid off in one tract, the length of which 
not to exceed double the breadth, in such place, on the northwest side of 
the Ohio, as a majority of the officers shall choose, and to be afterwards 
divided among the said officers and soldiers in due proportions, according to 
the laws of Virginia. 

(E) "That in case the quantity of good land on the southeast side of the 
Ohio, upon the waters of Cumberland River, and between the Green River and 
Tennessee River, which have been reserved by law for the Virginia troops, 
upon continental establishment, should, from the North Carolina line bearing 
in further upon the Cumberland lands than was expected, prove insufficient 
for their legal bounties, the deficiency should be made up to the said troops, in 
good lands, to be laid off between the rivers Scioto and Little Miami, on the 
northwest side of the river Ohio, in such proportions as have been engaged 
to them by the laws of Virginia. 

(F) "That all the lands within the territory so ceded to the United States, 
and not reserved for, or appropriated to, any of the before-mentioned pur- 
poses, or disposed of iti bounties to the officers and soldiers of the American 
army, shall be considered as a common fund for the use and benefit of such 
of the United States as have become, or shall become, members of the Con- 
federation or federal alliance of the said States, Virginia inclusive, accord- 
ing to their usual respective proportions in the general charge and expendi- 
tures, and shall be faithfully and bona fide disposed of for that purpose, and 
for no other use or purpose whatsoever. Provided, That the trust hereby 



Senate Doc. No. 3. 11 

reposed in the delegates of this State, shall not be executed unless three of 
them at least are present in Congress. 

"And whereas the said General Assembly, by their i-esolution of June 
sixth, one thousand seven hundred and eighty-three, had constituted and 
appointed us, the said Thomas Jefferson, Samuel Hardy, Arthur Lee and 
James Monroe, delegates to represent the said Commonwealth in Congress for 
one year, from the first Monday in November then next following, which 
resolution remains in full force: 

"Now, therefore, know ye, that we, the said Thomas Jefferson, Samuel 
Hardy, Arthur Lee and James Monroe, by virtue of the power and authority 
committed to us by the act of the said General Assembly of Virginia, before 
recited, and in the name, and for and on behalf of the said Commonwealth, 
do, by these presents, convey, transfer, assign, and make over, unto the 
United States, in Congress assembled, for the benefit of the said States, Vir- 
ginia inclusive, all right, title and claim, as w^ell of soil as jurisdiction, which 
the said Commonwealth hath to the territory or tract of country within the 
limits of the Virginia charter, situate, lying, and being, to the northwest of 
the river Ohio, to and for the uses and purposes and on the conditions of the 
said recited act. In testimony whereof, we ha,ve hereunto subscribed our 
names and affixed our seals, in Congress, the first day of March, in the year 
of our Lord one thousand seven hundred and eighty-four, and of the Inde- 
pendence of the United States the eighth." 

Resolved. That the United States Congress in assembled are ready to 
receive this deed, whenever the delegates of the State of Virginia are ready 
to execute the same. 

The delegates of Virginia then proceeded and signed, sealed, and delivered 
the said deed; whereupon Congress came to the following resolution: 

Resolved, That the same be recorded and enrolled among the acts of the 
United States, in Congress assembled. 

By these enactments Virginia ceded and the United States, in Con- 
gress assembled, accepted all of her territory northwest of the river 
Ohio, under the several conditions above shown. On July 7, 1786, Con- 
gress asked of Virginia alterations of the conditions of the above act of 
cession, as far as these conditions relate to the limits of new States to 
be formed in the territory so ceded, on account of difficulty in forming 
the lands into States with boundaries as contemplated in fue deed of 
cession. Following is the resolution adopted in Congress July 7, 1786'=: 

"Resolved. That it be, and it hereby is, recommended to the Legislature 
of Virginia to take into consideration their act of cession, and revise the 
same so far as to empower the United States in Congress assembled to make 
such a division of the territory of the United States lying northerly and 
westerly of the river Ohio, into distinct republican States, not more than 
five, nor less than three, as the situation of that country and future circum- 
stances may require; which States shall hereafter become members of the 
Federal Union, and have the same rights of sovereignty, freedom, and inde- 
pendence, as the original States, in conformity with the resolution of Congress 
of the 10th of October, 1780." 



"History of the Public Domain, pp. 69-70. Journals of Congress, July 7, 1786. Hening's Stat- 
utes of Virginia, December 30, 1788, Vol. 12, p. 780. 



12 Senate Doc. No. 3. 

On July 13, 1787, Congress passed the ordinance for the government of 
the territory northwest of the river Ohio, which embraced the above propo- 
sition as to the number of States in the Virginia cession. The subject matter 
of this ordinance had been under consideration by Congress from May 10, 
1786.' 

December 30, 1788, the General Assembly of the State of Virginia passed 
the following (Act of Virginia of 30th of December, 1788) : 

"Whereas the United States, in Congress assembled, did, on the seventh 
day of July, in the year of our Lord one thousand seven hundred and eighty- 
six, state certain reasons shewing that a division of the territory which hath 
been ceded to the said United States by this Commonwealth, into States, in 
conformity to the terms of cession, should the same be adhered to, would be 
attended with many inconveniences, and did recommend a revision of the 
act of cession, so far as to empower Congress to make such a division of 
the said territory into distinct and republican States, not more than five nor 
less than three in number, as the situation of that country and future circum- 
stances might require. And the said United States, in Congress assembled, 
have, in an ordinance for the government of the territory northwest of the 
river Ohio, passed on the thirteenth of July, one thousand seven hundred 
and eighty-seven, declared the following as one of the articles of compact be- 
tween the original States and the people and States in the said territory, viz.: 

"Article V. There shall be formed in the said territory not less than 
three, nor more than five States; and the boundaries of the States, as soon 
as Virginia shall alter her act of cession and consent to the same, shall 
become fixed and established as follows: to-wit: The western State in the 
said territory shall be bounded by the Mississippi, the Ohio, and Wabash 
rivers; a direct line drawn from the Wabash and Post Vincent's, due nortB 
to the territorial line between the United States and Canada, and by the said 
territorial line to the Lake of the Woods and Mississippi. The middle State 
shall be bounded by the said direct line, the Wabash from Post Vincent's 
to the Ohio; by the Ohio, by a direct line drawn due north from the mouth 
of the Great Miami to the said territorial line, and by the said territorial 
line. The eastern State shall be bounded by the last mentioned direct line, 
the Ohio, Pennsylvania and the said territorial line: provided, hotoever, and 
it is further understood and declared, that the boundaries of these three 
States shall be subject so far to be altered, that, if Congress shall hereafter 
find it expedient, they shall have authority to form one or two States in 
that part of the said territory which lies north of an east and west line drawn 
through the southerly bend or extreme of Lake Michigan. And whenever 
any of the said States shall have sixty thousand free inhabitants therein, 
such State shall be admitted by its delegates into the Congress of the United 
States, on an equal footing with the original States, in all respects what- 
ever; and shall be at liberty to form a permanent constitution and State 
government: provided, the constitution and government so to be formed 
shall be republican, and in conformity to the principles contained in these 
articles; and so far as it can be consistent with the general interest of the 
confederacy, such admission shall be allowed at an earlier period, and when 



'History of tlie Public Domain, p. 150. 



Senate Doc. No. 3. 13 

there may be a less number of free inhabitants in the State than sixty- 
thousand." 

And it is expedient that this Commonwealth do assent to the proposed 
alteration, so as to ratify and conform the said article of compact between 
the original States and the people and States in the said territory. 

2. Be it therefore enacted by the general assembly, That the afore-recited 
article of compact between the original States and the people and States in 
the said territory northwest of Ohio river be, and the same is hereby, ratified 
and confirmed, anything to the contrary in the deed of cession of the said 
territory by this Commonwealth to the United States notwithstanding."* 

That there was thus formed a definite contract and agreement between 
the United States and the State of Virginia, and an engagement by Congress 
to carry out the definite purposes and conditions of this agreement, is clearly 
shown by the words of the acts above quoted, and the circumstances under 
which they were passed. 

That the distinct conditions upon which Virginia's deed of cession was 
made were recognized as binding by the United States, at the first, is shown 
by the fact that the several conditions, marked (A), (B), (C), (D), (E), 
above, have, through various later enactments, been carefully fulfilled by 
Congress. (See Land Laws of the United States.) 

The obligation and engagement distinctly stated in the last condition 
upon which the Virginia cession was made and accepted, marked (F) above, 
must remain forever binding as at first, unless annulled by formal joint 
action by Congress and the State of Virginia, or rendered void by the adop- 
tion of the Constitution of the United States after the cession was made, or 
specifically fulfilled by Congress. 

There has been no legislation by the State of Virginia and the Congress 
changing this last condition. 

The Constitution of the United States, Article IV, Section 3, declares that 
regulations respecting the territory or other property belonging to the United 
States; a7id nothing in this Constitution shall he so eonstrued as to prejudice 
any elaims of the United States or of any particular State." 

Article VI of the Constitution of the United States declares that "All 
debts contracted, and engagements entered into, before the adoption of this 
Constitution, shall be as valid against the United States under this Constitu- 
tion, as under the Confederation." 

The engagement entered into by the United States with Virginia is thus 
not rendered void, but reaffirmed by the terms of the Constitution of the 
United States. 

As to the fulfillment of this last and most important of the conditions 
and engagements in Virginia's act of cession, it appears from all the history 
and record of the matter that Virginia, through no fault of hers, has en- 
tirely failed to receive her due and proportionate share of the use and benefit 
of these lands in the territory northwest of the river Ohio, as distinctly pro- 
vided and reserved in her deed of cession. 

The following statement, relating to the specific performance of the en-« 
gagement entered into by Congress to dispose of the lands ceded by Virginia 



'Hi.story of the Public Domain, p. 70. Henins's Statutes of Virginia, Vol. 12, p. 780. 



14 Senate Doc. N"o. 3. 

in the manner and for the purpose stipulated, can be verified by the citations 
given. 

As above recited, on March 1, 1784, the United States acquired from 
Virginia title to the soil and jurisdiction of the territory northwest of the 
river Ohio under the conditions stated. Immediately Congress began the 
enactment of legislation for the government of this territory, and for the 
disposition of the lands therein. 

On March 1, 1784," a committee, consisting of Mr. Jefferson, of Virginia, 
Mr. Chase of Maryland, and Mr. Howell of Rhode Island, submitted to 
Congress a plan for the temporary government of the Western Territory. 
This report was discussed and finally adopted, after amendment, on April 
23, 1784.1 

This remained in force as law until the adoption of the Ordinance for 
the government of the Territory of the United States northwest of the river 
Ohio of July 13, 1787.= 

These two ordinances related in their terms only to the government 
of the territory, and not to the disposition of the lands therein. 

On April 29, 1784,^ Congress, by resolution, called the attention of the 
States still holding western lands to the fact of former resolutions of Con- 
gress asking for cessions; and "in presenting another request for further 
cessions," stated (speaking of persons who had furnished supplies to carry 
on the war) : "These several creditors have a right to expect that funds shall 
be provided on which they may rely for their indemnification; that Congress 
still considers vacant territory as an important resource, and that, there- 
fore, the said States be earnestly pressed, by immediate and liberal cessions, 
to forward these necessary ends, and to promote the harmony of the Union." 
This was in accordance with a request made in Virginia's deed of cession. 

These western lands were looked upon by all the financiers of this period 
as an asset to be cashed at once for payment of current expenses of Govern- 
ment and entinguishment of the national debt.^ 

On the 20th of May, 1785,=* Congress passed an ordinance for ascertain- 
ing the mode disposing of lands within the western territory. It not only 
included disposition, but it gave the first plan of the survey of the lands t^irior 
to disposition. Under this ordinance the Board of Treasury (the Treasury 
Department prior to and under the Confederation; see ordinances of Con- 
gress of February 17, 1776, of July 30, 1779, and of May 28, 1784), consist- 
ing of three Commissioners, were to receive the plats of surveys from the 
geographer (now surveyor-general) in charge of surveys. The Secretary of 
War was then to draw by lot certain townships for land bounties for the 
use of the Continental army, and the Board of Treasury was to draw the 
remainder by lot in the name of the thirteen States, respectively, who were 
to advertise and sell them at public sale for not less than one dollar per acre. 

The provision for drawing certain tracts in the name of the thirteen 



"History of the Public Domain, pp. 147-149. Journals of Congress, March 1, 1784. 

^History of the Public Domain, pp. 148-149. Journals of Congress, April 23, 1784. 

-History of the Public Domain, pp. 149-153. Journals of Congress, July 13, 1787. 
^History of the Public Domain, pp. 196-197. 



Senate Doc. No. ;5. 15 

States was a move towards carrying out the last specific condition in the 
Virginia deed of cession. The clause requiring the drawing for the thirteen 
States was repealed by Congress July 9, 1788/ 

March 3, 1795,-^ Congress by law provided that "the net proceeds of the 
sales of lands belonging, or which shall hereafter belong, to the United 
States, in the Western Territory thereof," should constitute a portion of the 
sinking fund of the United States for the redemption of the public debt. 

May 18, 1796,'* Congress passed the act for the sale of the lands of the 
United States in the territory northwest of the river Ohio, providing for the 
sale of the surveyed lands in sections of 640 acres, at not less than two 
dollars per acre, the proceeds to be paid to the Treasurer of the United States. 

"The general policy of land legislation by Congress was, for the first 
thirty years, to meet exigencies by temporary enactments from time to time. 
This policy was continued down to the period of the passage of the pre- 
emption act of 1841."" 

Under this policy Congress fell into the habit of donating lands freely 
and liberally in the territory ceded by Virginia, apparently without con- 
sidering whether or not the conditions of this cession were being fulfilled 
by such donations and grants for local benefit. 

As the result of this indefinite policy, the lands in the territory ceded 
by Virginia have been practically all disposed of by the United States, with- 
out any adjustment or settlement of Virginia's reserved interest therein. 

Passing by, for the present, the facts, which are of record in the Treas- 
ury Department of the government, showing the receipts from the lands 
which w^ere sold by the United States in the territory ceded by Virginia, and 
the disposition made of these receipts in the, payment of the public indebted- 
ness, or otherwise, attention is called to the facts regarding the disposal by 
Congi'ess of large tracts of land, in the territory ceded by Virginia, for 
various purposes essentially local in their character, in the states organized 
in that territory, in which purposes and the subsequent uses and benefits 
of the land thus donated Virginia and the others of the original thirteen 
states had no part. 

The History of the Public Domain, prepared by the Public Land Com- 
mission, in pursuance of the acts of Congress of March 3, 1879, and June 16, 
1880, revised under subsequent acts of Congress and published by the Gov- 
ernment Printing Office, 1884, and the Land Laics of the United States, Vols. 
I and II (House Miscellaneous, 2nd Session, 47th Congress, 1882-1883, Volumes 
XVII and XVIII), show that Congress has made grants or donations of lands 
for the special benefit of the five states, Ohio, Indiana, Illinois, Michigan, Wis- 
consin, formed out of the territory ceded by Virginia, as follows: 

1. One section or square mile in each township of thirty-six square miles 
was given in these States by Congress to the legislatures of these five States 
for public schools. This means one thirty-sixth part of the lands in each 
State, a total of 4,365,917 acres.' 



^History of the Public Domain, p. 197. Journals of Congress, July 9, 17S8. 
"History of the Public Domain, p. 200. Journals of Congress, under dates given. 
'History of the Public Domain, p. 205. 

'History of the Public Domain, pp. 223-228. Land Laws of the United States, Vol. I, Nos. 28, 
215, 346, 493, 622. 



1(> Senate Doc. No. 3. 

2. A donation of 72 square miles (and more in Ohio and Wisconsin) 
was given to each of these five States for seminaries of learning or State 
universities — ^^a total of 299,520 acres." 

3. Three per cent, or five per cent, of the net receipts for sales of lands 
by the United States in each of these States was given to the States for 
roads, etc. The amounts which have accrued to the several States formed 
out of territory ceded by Virginia from these grants, up to June 30, 1S80, 
are, for Illinois, $712,744.82; for Indiana, $618,277.50; for Michigan, $471,- 
344.55; for Ohio, $596,634.10; for Wisconsin, $455,253.73. These amounts in 
Indiana, Illinois, and Ohio represent three per cent, of the net proceeds of 
the sales of public lands in those States, and in Michigan and Wisconsin five 
per cent, of such proceeds; total, $2,854,254.70.' 

4. Congress gave to each of these five states 500,000 acres of the public 
lands in these States for internal improvements — a total of 2,500,000 acres." 

5. For canal construction purposes Congress gave to Indiana, Ohio, Illi- 
nois, Wisconsin and Michigan, from the year 1824 to June 30, 1880, a total of 
4,424,073.06 acres.^ 

6. For military roads in Wisconsin and Michigan within the same period 
Congress gave more than 523,000 acres." 

7. Land grants for railroads, to these States, and corporations therein, 
up to June 30, 1880, amounted to, in Illinois, 2,595,053 acres; in Michigan, 
3,355,943 acres; in Wisconsin, 3,553,865 acres; total, 9,504,861 acres.' 

8. Congress gave to these several States salt springs and saline lands,, 
as follows: to Ohio, 24,216 acres; to Indiana, 23,040 acres; to Illinois, 121,029 
acres; to Michigan, 46,080 acres, — a total of 214,371 acres.^ 

9. Under the Swamp Land acts Congress gave to Illinois, 1,451,974 acres; 
to Indiana, 1,252,708 acres; to Michigan, over 5,640,000 acres; to Wisconsin, 
over 3,036,548 acres; to Ohio, 25,640 acres; — a total of over 11,406,847 acres." 

10. Congress gave in land bounties to soldiers of the Continental Line 
and in the War of 1812, 8,095,220 acres in the territory ceded by Virginia, 
and the grants made in the reserved Virginia Military District for the Vir- 
ginia troops on Continental establishment amounted to 3,770,000 acres, — a 
total granted in bounties up to 1861 on these two accounts of 11,865,220 
acres." 

11. Besides all the above, there were numerous grants on special ac- 
counts for river improvements, private donations, to special schools, for the 
local support of religious work, etc. These grants, mentioned in the History 
of the Public Domain, and in the Land Laws of the United States, show a 
total of over 100,000 acres for such uses purely local. 

That part of Minnesota lying east of the Mississippi River and of the 
95th meridian, was included in Virginia's cession. It includes, by count 



^History of the Public Domain, p. 228. 

"History of the Public Domain, p. 238. 

"Idem, p. 255. 

ildem, p, 250. 

=Idem, p. 260. • 

^Idem, pp. 269-70. 

<Idem, p. 218. 

Hdem, p. 223. 

"Idem, pp. 232-4. 



Senate Doc. Xo. ?>. 17 

of townships and fractions on our official United States map, 16,588,800 acres. 
The total acreage of lands surveyed by the United States in the territory 

ceded by Virginia is as follows:' 

In Ohio 25,576,960 acres 

In Indiana 21,937,760 acres 

In Illinois 35,465,093 acres 

In Michigan 36,128,640 acres 

In Wisconsin 34,51 1,360 acres 

In Minnesota, east of Mississippi River... 16,588,800 acres 

Total 170,208,613 acres 

In IMinnesota Congress gave even more liberally to local uses. As shown 
by the citations above, one-eighteenth of the area of Minnesota was given for 
schools, and for all the local uses above specified a total of 17,184,233 acres 
was granted. Approximately one-third of all the land in this State was thus 
given for local uses. In that part of the State lying in the Virginia cession 
this would amount to 5,529,600 acres, and $99,400.00 in cash. 

The amounts of land granted by Congress to Ohio, Indiana, Illinois, 
Michigan, and Wisconsin, or to persons in these States, for local uses, as 
shown under the headings numbered above, omitting the 10th heading, are 
as follows: 

1 4,365,917 acres 

2 299,520 acres 

3 $2,854,254.70 

4 2,500,000 acres 

5 4,420,073.06 acres 

6 523,000 acres 

7 9,504,861 acres 

8 214,371 acres 

9 11,406,847 acres 

11 100,000 acres 

Total 33,334,589.06 acres 

and $2,854,254.70 in cash. 

Similar grants in Minnesota, east of the 

Mississippi, amounted to 5,529,600 acres 

and $99,400.00 in cash. 

I 

Total for local uses 38,864,189.06 acres 

and $2,953,654.70 in cash. 

It thus appears that more than one-fiftli part of the lands ceded by Vir- 
ginia under definite proviso and conditions reserving to Virginia an interest 
in them, has been disposed of in ways that gave no "use" or "benefit" to 
Virginia, having been donated by Congress to local interests. 

At the time when Virginia ceded her western territory to the United 
States her "usual respective proportion in the general charge and expendi- 
ture" was about one-seventh of the whole, as shown by the requisition made 



'History of the Public Domain, p. 189. 



18 Senate Doc. No. 3. 

by Congress upon the thirteen States at that time. At the time of the 
cession her reserved interest was, therefore, one-seventh of all the lands not 
specifically applied to the purposes stated in the deed of cession. 

The value of the lands donated to local uses, amounting to 38,864,189 
acres, as shown above, computed at $2.00 per acre, which was the price fixed 
by Congress when they were offered for sale, by the act of May 18, 1796,' 

would be $77,728,378.00 

The donated percentage on sales was 2,953,654.70 

Total value of donations $80,681,032 70 

The total area surveyed by the United States in the States formed in the 
Virginia cession, as above shown amounted to 170,208,613 acres 

The total granted for local uses was 38,864,189 acres 

Total granted in bounties to soldiers 11,865,220 acres 

As shown above 50,729,409 acres 

170,208,613 acres 
50,729,409 acres 

Balance sold, or to be sold 119,479,204 acres 

The price received varied from time to time, but probably averaged at 
least $1.00 per acre. This would indicate receipts from sales of lands in the 
Virginia cession aggregating probably $100,000,000. The exact facts are mat- 
ters of record in the Departments in Washington. 

A study of all the acts and resolutions passed by Congress and the sev- 
eral States regarding the cession of lands claimd by the original States, as 
set forth in the History of the Public Domain, pages 60 to 81, shows that 
these cessions were asked by Congress, and made by the States for the pur- 
pose of securing, through the sale of the lands, funds by which the financial 
embarrassment of Congress could be relieved, and the public debt extin- 
guished. The Act of Congress of March 3, 1795, above quoted, distinctly pro- 
vides for this use of the proceeds of the lands ceded. The public debt in- 
curred in the War of the Revolution was eventually extinguished, and it 
appears from the last condition in Virginia's deed of cession that, as soon 
as this was accomplished her reserved interest should have become imme- 
diately available for her use and benefit. 

No attempt has been made in this paper to discuss the interest of any 
other of the original thirteen States in Virginia's cession. It appears that 
Kentucky and West Virginia, being formed out of territory that was a part 
of Virginia when the cession of the Northwest Territory was made, would 
logically have an interest dependent on Virginia's interest. 

I have not found that the State of Virginia has ever taken formal action 
looking to an investigation or adjustment of her reserved interest in the 
lands ceded to the United States March 1, 1784. 

Very respectfully, 

R. B. FULTON. 



•History of the Public Domain, p. 205. 



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